H1B Cap FAQ

All H-1B FAQs

Q: I am already on an H1B visa in the U.S. If I change to a new company, am I subject to the H1B cap?
A:
No. However, please request your lawyer to mark the package with “CHANGE OF EMPLOYER – NOT SUBJECT TO CAP” so that they do not think by mistake that you may be subject to the cap.

Q: My new H1 was approved, but I have not gone to the consulate yet to get my H1 visa stamped. Now that the cap is reached, can I still go to the consulate and get it stamped, or will I be not allowed to do that because the cap is already reached?
A:
 The H1 cap is counted by USCIS only when approving the H1 visa petition. You don’t have to worry about the H1 cap when getting your passport stamped at consulate with an H1 visa.

Q: If USCIS receives my application before the cap is reached, will I be subject to the H1 cap?
A:
 It does not matter that USCIS received your application before the cap is reached. The cap should not have been reached when your application is approved. 
USCIS may either hold, return the application, or allow it to amend with the start date of October 1, next fiscal year.

Q: I am student on EAD and need to apply for an H1B. Am I subject to the cap?
A:
 As you will be applying for an an H1B visa for the first time, you are subject to the cap.

Q: I am on an H4 right now and would like to apply for an H1B. Am I subject to the cap?
A:
 As you will be applying for an H1B visa for the first time, you are subject to the cap.

Q: I am on L1/L2 right now and would like to apply for an H1B. Am I subject to the cap?
A:
 As you will be applying for an H1B visa for the first time, you are subject to cap.

Q: Am I subject to the H1B cap if I apply for it under premium processing?
A:
Yes. Premium processing is just a faster way of getting an H1B processed, and you are still subject to the cap if you are applying for an H1B for the first time.

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Q: Can a person have multiple H1B sponsors?
A:
Yes, there is nothing that is stopping multiple employers for applying for an H1B for a person. Recent regulation clearly outlaws the filing of multiple petitions by the same employer. However, the rules have not explicitly said it is okay to file multiple petitions through different employers.

However, remember that the quota is reduced by 1 for each unique person. Matching is done by DOB (Date of Birth), nationality, and other passport details. It is risky to apply for multiple H1Bs due to the ambiguity in the language used by USCIS.

Q: I am a graduate student (currently on OPT) and have finished all of my course work, pending only thesis defense (expected May 2010). Can I still apply for an H1B in Master’s quota?
A:
No. You should not have anything pending for your degree to be eligible for the H1b under the advanced degree cap. In the past, people have had success with a letter of completion from Dean, etc. Recent results have shown that USCIS has been denying such applications.

Q: How does the Lottery process select applicants within the cap quota?
A:
The H1B registration process has two lottery stages to select the required H1B applicants to meet the cap quotas from the entire pool of applicants. The first lottery is conducted to select candidates to fill the regular cap quota of 65,000 petitions. After that, all the unselected applicants with a U.S. Master’s degree from the pool are taken separately, and then a second lottery is conducted to fill the U.S. Masters or Advanced Degree Exemption quota cap of 20,000 petitions.

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